At
thetime this article was written John F. Leslie wasa research consultant with Public History Inc. This article is an
edited version of his testimony to the House of Commons Standing Committee on
Aboriginal Affairs on March 12, 2002.

In 2001 the Minister of
Aboriginal Affairs, Robert Nault, announced that the government would be
introducing legislation to overhaul the Indian Act. In anticipation of this
legislation in February 2002, the House of Commons Standing Committee on
Aboriginal Affairs began hearing from various witnesses on issues
relating to the Act. For the sake of simplicity, this article uses the term
“Indian” throughout. The Constitution states that Canada’s Aboriginal Peoples
are Indians, Métis and Inuit, but the Indian Act does not apply to Métis and
the 1951 Indian Act specifically excludes Inuit from its operation.

The Indian Act is a complex piece of legislation that
has evolved in scope, content, and sophistication since about the mid-19th
century. The philosophical principles and practices of Indian policy are
reflected in the legislation of the period. A couple of points should be kept
in mind.

Historically, Indian policy
and legislation was devised largely without Indian consent or participation.
The 1951 Indian Act was an exception. A more recent example of lack of
meaningful consultation was, of course, the 1969 white paper. Both Indian
policy and Indian Act legislation were developed by members of the
dominant society, and they reflected the views and values of that society in
regard to the proper place and role of aboriginal people. There was this
constant, lingering Indian question in Canada.

Historical Origins of Indian
Policy and Administration

The key historical document in
terms of gaining an understanding of the evolution of Canadian Indian policy
and legislation was the Royal Proclamation of 1763. The Royal
Proclamation set down a policy and procedure for the Crown to acquire, in
an orderly fashion, Indian hunting grounds. The Royal Proclamation also
affirmed the first major principle of British Indian policy: that Indian people
on Indian lands were to be protected from unscrupulous land speculators and
traders. Indeed, the land cession treaty system of present-day Ontario and
western Canada can be traced back to the Royal Proclamation.

Officials of the Indian
Department which was founded in 1755 were expected to be custodians of the
imperial policy of Indian protection, and were instructed to oversee and manage
the acquisition of Indian lands required for European settlement. This role was
expanded after 1830.

The traditional roles of
Indian people in early colonial society were to act as middlemen in the fur
trade and to assist regular armed forces in times of war. These activities were
carried out with distinction during both the French and British regimes. In
these traditional functions, Indian people shared, to a degree, in decision-making,
devising trade practices, and planning military operations.

However, following the end of
the War of 1812, the traditional roles for Indian people in colonial society
declined rapidly. British and Canadian policy-makers were faced with
determining a new role and place for Indians in colonial society. Instead of
abandoning Indian people to face the harsh, new political and economic
realities, the first principle of Indian policy, that of Indian protection, was
reasserted. The new approach was simple and direct: place Indian people
temporarily on reserved lands – convert them to Christianity, dress them in
European clothes, and teach them to become self-sustaining British citizens by
becoming productive farmers.

Policy-makers of the day were optimistic that the
process of Indian assimilation would be rapid. Indian people per se would
disappear through intermarriage and other processes, as would their lands, the
reserves. In the beginning, there was no obvious need for protective Indian
legislation.

The Pre-Confederation Legacy

The Indian civilization
program, which was launched in 1830, was based on three philosophical
principles: Indian protection, based on the Royal Proclamation;
improvement of Indian living conditions; and Indian assimilation into the dominant
society. The new policy had three systemic cornerstones: a system of land
cession treaties, which we see in Upper Canada, which is now Ontario and
western Canada; a system of Indian reserves and supervisory Indian agents; and
a system of schools to educate Indians, first at day and industrial schools,
and later at residential schools.

Between 1830 and 1858, there
were six government investigations of Indian policy and the new administrative
arrangements. The cumulative investigations sanctioned the Indian civilization
program and, in essence, created an institutional memory for Indian Affairs
policy-makers that, in subsequent decades, informed their attitudes towards
Indian people and Indian issues. Interestingly, as early as the 1840s, these
government investigations recognized that Indian policy and administrative
practices were too paternalistic, but no other arrangements were broached or
deemed viable. Officials were satisfied with the status quo.

The first piece of legislation
to protect Indian reserves was passed in Upper Canada in 1839, and what it did
was basically include Indian lands in with crown lands. There was no separate
distinction. But by mid-century, 1850, government officials realized that the
transformation of Indian people into productive farmers was not proceeding as
rapidly as expected. Rapid settlement and commercial development, particularly
in Canada West – which would become Ontario – necessitated some more elaborate
legislative protection for Indian people and their lands.

This protection came in 1850,
when the Province of Canada, which at that time comprised Ontario and Quebec,
passed two pieces of legislation to protect Indian reserve lands and property.
The legislation that applied to Canada East – which became Quebec – is noteworthy
because a four-point definition of who constituted an Indian in government eyes
was provided for the first time. In the legislation for Canada West, section 4
of the act established the practice that no taxes would be levied on Indian
people living on reserve lands.

By the late 1850s, Indian
policy-makers were becoming impatient with the slow progress of Indian
assimilation. As a consequence, in 1857, An Act to encourage the gradual
Civilization of the Indian Tribes in this Province, and to amend the Laws
respecting Indians, was proclaimed. This legislation set down a policy and
procedure whereby all legal distinctions between Indian people and non-natives
would be removed under certain conditions. This act was clarified further in
1859 and 1860. As well, in 1859, the 1850 legislation to protect Indian lands
was strengthened, with numerous penalty clauses and additional authority for
those officials enforcing the legislation.

In 1858, British officials
notified their Canadian counterparts that they were no longer interested in
financing Indian administration. As a result, responsibility for the evolving
system of Indian legislation, a growing administrative apparatus, and increased
expenditures, was formally turned over to the Province of Canada in 1860. In
effect, Canada was now on its own.

Confederation

So what were the main features
of Indian policy, administration, and legislation, at Confederation in 1867?
First, as in colonial times, Indian administration was deemed too sensitive a
policy field to be left to the various provinces. It was going to be a federal
responsibility. Protection of Indian people and Indian lands became a federal
responsibility under section 91, class 24, of the British North America Act.

Second, the new federal
government, largely made up of officials from the Province of Canada, looked no
further than the pre-Confederation Indian policy and administrative
arrangements and applied the three systems of treaties, reserves, and Indian
education across the Dominion, with regional variations to meet local
circumstances and conditions.

Third, after 1873, Indian
Affairs became a branch of the Department of the Interior and remained under
the jurisdiction of the minister – who, in 1880, was Sir John A. Macdonald –
until 1936, a period of some 63 years.

In the decades after
Confederation – in fact, I would argue it was until 1940 – the policy,
administrative, and legislative framework for dealing with Indian people and
Indian issues, as established in colonial times, became the basic model for a
more elaborate and comprehensive federal approach. Remarkably, however, the
philosophical assumptions behind Indian policy and Indian legislation were not
questioned, nor was the viability of the land cession treaty systems, the
reserves, and education.

In 1876, the Indian Affairs branch consolidated all
the existing pre-Confederation legislation, with some modifications, into one
consolidated Indian Act, meaning that the first consolidated Indian Act
came in 1876. It is interesting to note that the Indian Act actually
came after some of the treaties. The western treaties that were negotiated,
Treaty No. 1 through Treaty No. 6, 1871 to 1876, preceded the Indian Act.
Many Indian people in western Canada say the relationship is not with the Indian
Act, it is with the treaties, because the act came after the treaties.

The first post-Confederation
Indian Act was comprehensive. It contained a hundred sections, it touched
on all aspects of Indian reserve life, and it directed government
administration. For example, various sections dealt with who was an Indian;
what constituted an Indian band; what was an Indian reserve; how Indian reserve
lands could be subdivided via location tickets; what legal protections would be
given to reserves; and how reserves could be surrendered. There were also rules
for the management and sale of minerals and timber; procedures for the
disposition of Indian moneys; enumerated powers for the chiefs and band
councils; band election procedures; specific Indian privileges – for example,
“no taxation” was repeated; disabilities and penalties; and procedures for
Indian enfranchisement – that is, for loss of Indian status.

The 1876 Indian Act was
modified and tightened in 1880. The major provisions of this act remained in
place until 1927, despite some thirty amendments when the Indian Act was
finally revised. In 1884, An Act for conferring certain privileges on the
more advanced Bands of the Indians of Canada, with the view of training them
for the exercise of municipal powers – that is the actual title of it – was
passed by Parliament. This legislation became know as the Indian Advancement
Act, and its focus was mainly on the bands of eastern Canada. The measures
were designed to promote municipal-style government for the more advanced
Indian groups, such as the Six Nations at Brantford.

In spite of the official
optimism, events were not progressing as politicians and officials had hoped,
particularly in the west. Old Indian ways persisted. The policy of Indian
assimilation was not showing tangible results. In the view of government
officials, a relatively effortless way of dealing with the apparent lack of
progress was to revise the Indian Act to give more powers to local
Indian agents and to heavily penalize Indian people for persisting in the old
ways. For example, in the 1880s, Indian agents acquired additional powers as
justices of the peace in order to prosecute Indians. In April 1884, the Indian
Act was amended by section 3, which placed a ban on dances and traditional
ceremonies. In 1894, section 11 gave the Minister of Indian Affairs the power
to direct industrial or residential schools, and made school attendance
compulsory, with strict truancy penalties. And in 1927, a section 141 was
inserted into the act, banning the pursuit of land claims.

To get some idea of the state
of official thinking on Indian policy in the early decades of the 20th century,
one need not go further than quoting Deputy Superintendent-General Duncan Campbell
Scott in his remarks to the 1920 Special Committee of the House of Commons
examining the Indian Act amendments of 1920, when he spoke about new
legislative measures for compulsory enfranchisement of Indians:

Our objective is to continue
until there is not a single Indian in Canada that has not been absorbed into
the body politic and there is no Indian question, and no Indian Department,
that is the object of this Bill.

Despite the intentions of
policy-makers, Indian peoples did not disappear. Quite the contrary. By the
1930s, Indian agents and missionaries noted a significant increase in the
native population. With government cutbacks during the Great Depression and
with more Indians crowded on reserve lands, living conditions on reserves
became increasingly unbearable. There seemed to be no ready solution to the
long-standing Indian question. In fact, Indian branch officials did not know
precisely how many Indians there were in Canada, because Indian band lists were
maintained in a haphazard fashion by the local agents.

The plight of Canada’s Indian
peoples became a matter of national concern at the close of World War II, when
the House of Commons Special Committee on Reconstruction and Re-establishment
was struck. This committee was charged with looking into the nature of Canadian
society after the war. In this period of national account-taking, Indian
reserve conditions and Indian policy and administration came under sustained
public scrutiny for the first time since before Confederation.

Between 1946 and 1948, a
special joint committee of the Senate and House of Commons examined the
operation of the Indian Act and Indian administration. Witnesses were
called, including government officials, select native groups, and interested
parties.

Three years of committee
hearings produced significant policy and administrative recommendations. For
example, the special joint committee came up with its own Indian Act,
and this became known as the “Committee’s Bill”. The committee proposed that
Indian people receive the federal vote, which they had once possessed in the
1880s but had lost on technical grounds. The committee suggested that an Indian
claims commission be established to deal with long-standing grievances that
were impeding Indian participation in Canadian society. The committee felt the
minister had too many discretionary powers and that these should be reduced in
a new act. The committee argued that Indian bands should be able to develop
their own charters or constitutions for self-government – and that is the term
they used back in the 1940s, “self-government” – and that the bands should be
allowed to incorporate and hold title to reserve lands. Finally, the
long-standing policy goal of Indian assimilation was modified by the committee
hearings, to one supporting Indian integration.

From 1948 to 1950, government
officials considered the special joint committee’s proposals and rejected most
of them: the federal vote, the claims commission, and the notion of Indian band
constitutions and incorporation. In June 1950, revised Indian Act
legislation was presented to the House of Commons. It was soon withdrawn
because Indian people and their supporters claimed they had not been formally
consulted. A revised bill was reintroduced in the fall of 1950 and was reviewed
by select Indian leaders in a five-day session in Ottawa in the winter of 1951.
A new Indian Act, the one currently in force, was proclaimed in
September 1951.

The 1951 Indian Act

The revised Indian Act
of 1951 was not a radical departure from earlier versions. It essentially
tidied up and removed conflicting sections. In many ways, it was an exercise in
legislative housekeeping. There were few significant departures. There was no
claims commission, and there was no federal vote for the Indians. The ban on
dances and ceremonies was lifted, as was the ban on the pursuit of land claims.
The discretionary powers of the minister were reduced in number, as were the
number of penalty clauses against Indians. Chiefs and band councils received more
powers to act as municipal-style governments – in particular, greater freedom
to spend band revenues as they saw fit. And perhaps the most significant
features of the revised act were a new legal definition of who was entitled to
be an Indian, and the establishment at Indian branch headquarters of a central
Indian registry.

In many respects, the need to
specifically identify who was an Indian – at least in government eyes – and was
thus entitled to receive government benefits such as mothers’ allowances and
old age pensions, was prompted by the advent of the post-war welfare state. The
passage of the revised Indian Act suggested to policy-makers that Indian
administration had set out on a new and enlightened course for the 1950s.

The 1950s were relatively uneventful
until the arrival of the John Diefenbaker Conservatives in 1957. Under the
aegis of the Diefenbaker Government, there were several major initiatives.
Between 1959 and 1961, a second joint committee of the Senate and the House of
Commons reviewed Indian administration. A series of recommendations made in
1961 were actively pursued by the government, including establishing an Indian
Claims Commission and carrying out Indian Act revisions.

In 1962, a bill to establish a
claims commission was introduced in Parliament, but the measure died when the
government was defeated in 1963. Similarly, the Diefenbaker cabinet was working
on significant changes to the Indian Act in late 1962, including band
incorporation and allowing women to keep their status even if they married
non-Indians. However, these were not pursued due to the government’s defeat.

Despite these failures, the
Conservative government did introduce two significant legislative measures. In
1960, Indian people received the federal vote, and in 1961, section 112,
concerning compulsory Indian enfranchisement provisions, was deleted from the Indian
Act.

When Lester B. Pearson’s
Liberal Government came to power in 1963, Indian claims legislation was
reintroduced in Parliament. The government also commissioned an in-depth study
of Indian economic, educational, and political needs. This was the
Hawthorn-Tremblay report, which presented a two-volume study to government in
1966-67. That report is noteworthy for introducing the notion of Indian people
as “citizens plus’”, and it called upon the Department of Indian Affairs, which
had been established as a stand-alone in 1966, to assume an advocacy role for
Indian people within the federal bureaucracy.

The 91 Hawthorn proposals were
under consideration when the government decided to launch a series of Indian
consultation meetings across Canada to revise the Indian Act. The round
of Indian consultations began in 1968 and continued until the spring of 1969.
The consultation process revealed that Indian people wanted greater
self-government; more funds for economic and social development; settlement of
land claims; protection of treaty rights; and constitutional recognition of
aboriginal rights.

The government response was
the June 1969 Statement of the Government of Canada on Indian Policy, the
infamous white paper. Instead of buying into the notion of Indians as “citizens
plus” and settling land claims, the discussion paper called for an end to
Indian status, which was viewed as discriminatory. The white paper also called
for the termination of the operations of the Department of Indian Affairs, and
revised legal status for Indian reserve lands. A commissioner of Indian claims
was appointed to examine how Indian claims and treaty issues should be
adjudicated.

In many ways, the 1969 white
paper went right back to the 19th century. It was straight
assimilation. The federal policy proposals caused a political uproar among
Indian people and their supporters. The discussion paper was formally withdrawn
in 1970, but it left a bitter legacy.

The Indian consultation
process and the resulting white paper experience created a termination
psychosis among Indian people and their political institutions. Did the federal
government have a hidden Indian policy agenda? This unease has coloured
Indian-government relations for many years, and has made both policy and
legislative change difficult. Yet there were significant policy and legislative
developments, many driven by Supreme Court decisions. Some are worth noting in
a brief fashion.

For example, following the
Calder decision in the 1970s, the federal government announced a set of
specific and comprehensive land claims policies to deal with historic
grievances. Later in the decade, the government thought it might be a good idea
to get the National Indian Brotherhood and cabinet together in order to
establish some sort of a joint committee that would look at policy issues .
This started around 1974 and lasted two or three years, but it produced no
tangible results.

The 1980s were productive. The
Charter of Rights and Freedoms, proclaimed in the early 1980s, had a
section providing constitutional protection for treaty and aboriginal rights.
Indeed, the Royal Proclamation of 1763 was deemed to be one of Canada’s
constitutional documents. In November 1983, the Special Parliamentary Committee
on Indian Self-Government presented its findings and urged expanded powers for
first nations governments, which in some instances would go beyond the
traditional municipal model. Of course, in 1985, we then had Bill C-31, which
was passed by Parliament to reinstate Indian women who had lost their status
under paragraph 12(1)(b) of the 1951 Indian Act.

In the 1990s, of course,
Indian Affairs announced a policy on the inherent right to self-government.
There was also a royal commission appointed between 1991 and 1996, to
investigate the condition of Canada’s aboriginal peoples. And more recently, we
have had the First Nations Land Management Act.

These initiatives and events
are, of course, only highlights of the continuing efforts by the federal
government – with varying degrees of provincial assistance – to improve living
conditions on Indian reserves, which are still comparable to the fourth world
in some instances. But after 247 years of formal Indian administration, we are
still grappling with an Indian question in Canada.